monthly statements showing what employe's compensation was, was binding on the employe as a correct interpretation by the parties of the contract of employment, which was ambiguous as to the compensation to be paid.-Strayer v. Gimbel Bros., Wis., 178 N. W. 241.

60. Employe.-If an employe's action for breach of contract of employment for a specified number of weeks, the duration of the contract held a question for the jury, notwithstanding salary receipts signed by employe, stating employment to be from week to week at employer's option, where employe explained, receipts by testimony that she signed receipts without reading them on the strength of employer's misrepresentation that they were merely receipts for her salary.-Schnars V. Drezwell Co., Inc., N. Y., 182 N. Y. S. 893.

61.- -Mitigating Damages. It was the duty of a wrongfully discharged servant to mitigate his damages as much as possible, even to the extent of accepting his employer's offer to continue him in its employ for a part of his unexpired term of employment.-Stockman Slater Bros. Cloak & Suit Co., N. Y., 182 N. Y. S. 815.

V.

62.- Parent and Child.-A father who furnishes an automobile for the pleasure of his family, and allows his minor son to drive whenever he desires, is not responsible to a third person for the son's negligence while using the car solely for his own pleasure.-Pratt v. Cloutier, Me., 110 Atl. 353.

63. Promise by Master.-The effect of a promise to repair, and of reliance thereon, is to create a new stipulation, whereby the master assumes the risk impendent during the time specified for the repairs to be made, and where no definite period is specified, the suspension of the master's right to avail himself of the defense continues for a reasonable time.-Moline Timber Co. v. Taylor, Ark., 222 S. W. 371. 64. Mortgages-Trustee.-A trustee making a sale under a deed of trust, and not the purchaser at such sale, is liable for the proper distribution of the proceeds among those titled thereto.-Wenzel v. O'Neal, Mo., 222 S. W. 392.

en

or

66. Principal and Surety-Willful Misapplication.-Bank's cashier "willfully misapplied willfully abstracted" bank's funds, within his bond, whether he used all the money for himself personally, or got it and willfully misapplied it in some other way, to the use of some other person.-National Surety Co. v. Atascosa Ice, Water and Light Co., Tex., 222 S. W. 597. 67. Property-Prima Facie Ownership.--One in possession of land for nine years under a deed from heirs, in good faith claiming ownership, is prima facie the owner of the land as against every person other than true owner, although all heirs did not sign the deed.-Hunter v. Weil, Mo., 222 S. W. 472.

68. Release Acquittance.-An instrument purporting to be "a full acknowledgment and acquittance of every claim of every kind from the beginning of time" cannot be urged in this court as an absolute bar to a cause of action, where the instrument was offered by defendant "for the purpose of showing an admission," and plaintiff was permitted to testify, without objection. that the matters in suit were not considered by the parties nor intended to be covered by the writing. -Dunn v. Alexander, Neb., 178 N. W. 215.

69. Sales Counter Offer. Where seller, in letter in reply to buyer's order. stipulated the price and the terms of sale, and three months thereafter wrote buyer, expressing doubt as to ability to fill order, in view of burning of mill by which goods were to have been manufactured, there was no contract; seller's letter in reply to order constituting a counter offer, and

71.

-Qualified Delivery.-A seller of goods for cash has a lien for the price so long as he retains possession, and a qualified delivery does not defeat his lien.--Rine v. Ireland Lumber Co., W. Va., 103 S. E. 452.

72. Specific Performance-Direction.-A decree for specific performance of a contract is not a matter of right, but rests in the sound discretion of the trial court, which discretion is not arbitrary, but judicial, and must be exercised according to the established doctrine and principles of equity.-Bergstedt v. Bender, Tex., 222 S. W. 547.

73. Sharp Practice.-Specific performance of a contract to convey land secured by sharp practices or trickery will not be granted.— Brown v. Musgrave, Tex., 222 S. W. 606.

74.

-Standing Timber.-Specific performance of a contract to convey standing timber may be granted. Anderson-Tully Co. v. Gillett Lumber Co., Ark., 222 S. W. 362.

75. Trusts-Resulting Trust. To establish a resulting trust as to realty, the evidence must be clear, strong, unequivocal, definite, and so positive as to leave no room for doubt in the mind of the chancellor.-Gammage v. Latham, Mo., 222 S. W. 469.

76. Vendor and Purchaser-Notice of Rescission. The bringing of an action to rescind a contract for exchange of land is a sufficient notice of an offer to rescind and reconvey the property.-Walker v. Burch, Neb., 178 N. W.

209.

77.-Paper Title.-Where a person has in fact held land long enough to give hirm title by limitation, it is good against a claimant under a paper title, although at the time of the purchase the land is vacant and there is no trace of the prior adverse possession.-Houston Oil Co. of Texas v. Olive Sternenberg & Co., Tex., 222 S. W. 534.

78. Wills-Executory Trust.-A showing that donor made a deposit in trust, that donor was to hold title and power to dispose of the property so long as she lived, remainder to go to the cestui trust, would disclose an executory trust, testamentary in character, not effective under the statute of wills.-Cazallis v. Ingraham, Me., 110 Atl. 359.

79. Oral Agreement.-Oral agreements to devise land must be established by clear and convincing proof; loose remarks and statements of legal conclusions not sufficing under the law to establish such contracts.-Anderson v. Collins, Mo., 222 S. W. 451.

80. Survivorship.-Where lands are devised to two or more tenants in common, with remainders over on the death of all of them, there arises an estate in the surviving grantee or grantees, which is called a cross-remainder, because each grantee has reciprocally a remainder in the shares of the others.-Kramer v. Sangamon Loan & Trust Co., Ill., 127 N. E. 877.

81.- -Undue Influence.-Though declarations of testator that he has made his will are not admissible, either on issue of execution or attestation, where it is alleged by contestants that proponents have exercised undue influence, such declarations, made within a reasonable period from execution, are admissible to show testator's state of mind and effect of such influence thereon.-Massey v. Allen, Tex., 222 S. W. 682.

82. Work and Labor Gratuitous Services.Where persons dwell together as a family, the presumption is that services rendered for each other are rendered gratuitously, and there is therefore no implied agreement to pay for services rendered by one member for another member of the family group.-Humphrey v. Johnston, Ind., 127 N. E. 819.

Central Law Journal.

ST. LOUIS, MO., SEPTEMBER 3, 1920.

DISABLED SOLDIERS EMPLOYED UNDER REHABILITATION ACT ARE ENTITLED TO BENEFITS OF WORKMEN'S COMPENSATION ACTS.

The question has arisen in several states whether disabled soldiers who are receiving vocational training in industrial establishments under the Federal Rehabilitation Act are entitled to the benefits of the Workmen's Compensation Acts in the various

states.

This question is determined by the further question: Is the disabled soldier thus "placed" in an industrial plant an employe of the establishment to which he is assigned? The employers contend that he is not, for several reasons: First, because he is not their servant but the ward of the government, and that he is permitted to learn a trade as a mere act of charity on the part of the employer; second, that he receives no compensation from the employer and that therefore is not an employe under the usual definitions in the Workmen's Compensation Acts which as a general rule define an "employe" as one "who performs services for another for a valuable consideration."

Both these reasons are untenable, it seems to us, and, therefore, the reasons failing, there should be no doubt whatever of the right of a disabled soldier or sailor learning a trade under the provisions of the Rehabilitation Act to the benefits of the Workmen's Compensation Act of the state. where he is employed.

In the first place the disabled soldier in thus taking advantage of the Rehabilitation Act does not become a "ward" of the federal government. The purpose of this Act is just the opposite: it is to make the disabled soldier independent and self-reliant, by helping him to learn a trade and earn his own living. To effect this pur

pose the disabled soldier is placed in an industrial establishment to learn a trade and is allowed $80.00 per month. While the disabled soldier is "placed" by the Board of Vocational Training, which also pays him his "allowance" and provides him with necessary books for study, the proprietor of the establishment is in full control of the man so "placed." He becomes an employe of the plant where he is placed and must obey the orders of the owner of the plant, who also has authority to assign him to any particular work and to regulate his hours of employment.

In the second place the disabled soldier "placed" in an industrial plant is employed for a compensation. He renders valuable services in return for instruction and experience. The employers seek these men— they do not have to be begged. They receive valuable services from them and in return give to the soldier that which he wants-instruction which soon enables him to secure a steady "job," usually with the employer with whom he is first placed. The Pennsylvania Industrial Accident Board handed down a decision recently in favor of the disabled soldier from which we quote the following:

"As we view such a case, the owner of a plant in which such injured soldier or sailor is placed for the purpose of rehabilitation is moved to accept from the Federal Board such men because of the fact that these men are learning a trade in the plant, and, while they are so learning, will be producing and the employer will receive the benefit of their efforts in this respect, and this valuable result to the owner of the establishment will increase from day to day as the workman, thus assigned, increases his efficiency. In other words, the Federal Board takes the ward, the injured soldier or sailor, secures a place in a shop or a mill or a factory where the owner of such establishment receives the benefit of the soldier's or sailor's work, for which he need not pay anything of money value, for the consideration going out from him to the injured man is the opportunity to acquire a trade. Therefore, should a man in this relationship to the Federal Board and to the owner be injured, we would have a case

where a man was injured upon the owner's premises, by the operation of the owner's business, while the one injured was there giving the owner the benefit of his work, and, therefore, the valuable consideration takes the place of the wage, and such a man must be considered as an employe while thus occupied."

We do not believe that there can be any doubt that the construction of the Pennsylvania Board is the correct one and should be followed by the boards of industrial accidents in other states. It would be an unfortunate construction, and one opposed to the purpose of the Rehabilitation Act, to differentiate between disabled soldiers placed in industrial plants for instruction and other employes in respect to their right to compensation for injuries received in the course of their "employment."

NOTES OF IMPORTANT DECISIONS.

WHAT IS AN OBSCENE PUBLICATION? -Under the early decisions in this country no rule was more rigidly adhered to than that no man could be held liable criminally for an act not clearly defined by law. Without criticising the decisions which have departed from a strict adhesion to this rule, we wish here to call attention to some difficulties in which the courts now find themselves when attempting to define acts left undefined by statute.

The federal courts are at present in sharp disagreement over the constitutionality of the Lever Act making profiteering a crime without saying what constitutes profiteering. They might wisely take notice of the difficulty which state courts are having over the undefined crime of "obscene publication." This difficulty is illustrated in the recent case of People v. Harper Bros., decided June 15, 1920, by the Appellate Division of the Supreme Court of New York (63 N. Y. L. J. 1276).

In this case the defendants were indicted for publishing a book called "Madeline," an autobiography of a prostitute. The book was passed by the Harper's board of reviewing editors as having literary merit, but was declared

by the State to be an "indecent and disgusting book" within the meaning of the statute on "Indecency." The jury found the defendant guilty, but the Appellate Court disagreed with this finding of fact and declared by a vote of four to one that they could not find anything indecent or cisgusting about the book, and therefore the judgment should be reversed. The majority of the court declared that the book was a mere recital of facts about a phase of life which is as real as it is abhorrent, but that the story is told frankly for the purpose of giving a truthful picture of this phase of life and with no desire apparent in the book itself to arouse "lecherous desires." The court further declared that there are no salacious details intended to appeal to the prurient desires of lustful men or women and that a careful reading of the book failed to disclose anything that would bring the book into the category of "indecent and disgusting books," condemned by the statute.

Justice Dowling dissented on the ground that since the statute left the crime of publishing an "indecent" book undefined, it was intended to let the trial court supply this def inition under proper instructions.

The wisdom of constitutional provisions in requiring the legislature to accurately define an act which is made a criminal offense is shown in such a situation as this. Every man has a right to some clearly defined standard by which to determine whether an act committed by him is criminal or not. The word "indecent" does not define anything, simply because it means one thing to one man and another thing to another. One-piece bathing suits for women are regarded as indecent at one watering resort and perfectly conventional at another. Only a few years ago the newspapers declared that short skirts were indecent and tended to immorality. Today nothing is said about them. If the publication of the details of a life of prostitution is criminal the United States Government is itself the greatest offender, for it published many illustrated books and pamphlets and even moving pictures, illustrated with many salacious details, of the house of ill-fame. The main purpose of those books and pictures was to disclose the dangers of disease, mental incompetency and death that lay in wait for those who trav eled the primrose path.

Perhaps the shortest and best definition of obscenity was given by Cockburn, C. J., in 11

Cox C. C. 191, when he said that the test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the publication may fall.

An interesting criticism of this case is offered by the New York Law Journal of July 22, 1920, where the learned editor says:

"This difference of opinion among judges emphasizes the difficulty of laying down any categorical test of indecency or obscenity.

"In Indiana a bookseller was convicted for the sale of 'Decameron' of Boccaccio, whereas in the New York State courts it has been apparently decided that it is not obscene literature. Which of these views is correct? What standard can be fixed? Learned judges differ.

"Judge Ben B. Lindsey, of the Juvenile Court of Denver indorsed the book 'Madeline,' and wrote an introduction to it. The learned justices of the Court of Special Sessions and Mr. Justice Dowling of the Appellate Division, on the other hand, argue that the book would have a necessarily corrupting effect on the minds and morals of those who might read it. We cannot refrain from mentioning, in this connection, the case of the prosecution of the notorious eccentric, George Francis Train, in the year 1872. He was apprehended by the authorities for circulating alleged obscene literature. It transpired, however, at the trial that the 'obscene' literature consisted almost entirely of quotations from the Bible (see Medico-Legal Journal for December, 1906). This is not a solitary instance. In the year 1895 John B. Wise was prosecuted, found guilty and fined for sending 'obscene matter' through the mail. On investigation it was likewise discovered that the 'obscene matter' consisted entirely of Biblical quotations.

"Of one thing we are sure, and that is that whether the book 'Madeline' meets the unfortunately vague and indefinite tests of indecency and obscenity which have been pronounced by our courts, it surely is an insufferably stupid and disgustingly vulgar book. There is no more reason for publishing a book of this character than there is for painting a picture of a cesspool.

"The moral to be drawn from the case of Madeline is perfectly clear: The legislature at its next session should immediately amend section 1141 of the Penal Law, defining 'obscene prints and articles,' so as to provide a more definite and specific test of obscenity and indecency. If this cannot be done, it would be better to repeal the statute entirely. But that this can be done the experience of other jurisdictions proves. Furthermore, some provision should be made in this section for trial by jury, because we would rather have the opinion of twelve ordinary men of average and varying degrees of intelligence and experience on the character of a book of this sort than

the opinion of any body of judges, no matter how learned. This question seems peculiarly

a subject for trial by jury, and, in fact, the correct test would seem to be, what is the judgment of the aggregate sense of the community, as expressed by twelve carefully chosen jurors? We venture it would have been more satisfactory to everyone concerned in this proceeding if the issue had been tried out before a jury."

RHYME AND RHYTHM IN A MASTER'S REPORT.

Andrew S. Miller, of Pittsburg, Pa., a Master in Chancery, filed in the Court of Common Pleas his official report in the case of Margaret Smith v. Charles. Smith-a divorce libel. The fact that the report was in verse did not raise any objection to it in the Judge's mind, who probably enjoyed the delightful novelty of a poem in chancery. The report as filed in court, and upon which a decree was rendered, is as follows:

To the Honorable, the Judges of Common Pleas Court:

Your most obedient Master would respectfully report:

That having given notice of the time and place to meet,

And having ample proof thereof, he duly took his seat,

To hear the testimony and decide as he saw fit,

Having due regard to evidence and law

that governs it.

He took the statements in the case, as best he could get at 'em,

Verbatim, et punctatim and likewise ad literatum.

The testimony in the case as to respondent's acts,

Is herewith filed and indicates the undisputed facts.

I. SCHEDULE.

(a) The libel was presented in due form. in open court.